The workers compensation law is founded on the concept of exclusive remedy. In exchange the employer is protected from a civil case. The agreement results in liberal construction. The Trier of Fact has always had the latitude to interpret PD when there are gray areas, and can do so in favor of the worker. The traditional concept is that this is a David and Goliath situation and the system should err in favor of the injured workers.

The new En Banc decisions are a recapitulation of this basic tenet of all workers compensation law. We first saw this in Le Bouef, followed by any number of cases where a PD rating is increased by the WCAB. In cases like Espinoza in the late 80’s, literacy was factored out of the PD rating and considered non industrial. This came up again recently in Hertz, but its really old news.

The new En Banc decision has given the applicant’s attorney more encouragement to challenge the rating. There has always been this ability and the challenge is generally successful, if in fact, the worker is far more disabled than rated. Or far less. I recall the excitement when a case law came out in the late 90’s that said the PTP did not always prevail. The judge simply found the D/QME better science, better clinical evidence and more compelling than a poorly conceived PTP report.

The use of the vocational expert in cases where there is a possible injustice has always been an option for the applicant attorney. The defense will need rebuttal evaluations to ensure that these assertions are fairly reviewed by the Trier of Fact. I am pleased to see the issue raised and the heightened interest in the opinions of vocational experts. There are many pitfalls in the practices and methodologies used. Does interest and motivation factor into ability to work? Is possible to identify the “highest and best” earnings and the “lowest and worst?” Certainly a decent vocational expert can take any side of the argument and present a case of very low, or no earnings, or present a case of higher earnings or no loss of earnings. These are hypothetical evaluations, and the factors must be considered carefully.

Recently I evaluated a young man, age 27, who had an injured hand and could no longer deliver furniture. He was earning $16.00 per hour. The applicant’s evaluator determined he had no transferable skills and was able to earn only minimum wage. One year later, the applicant had taken a four week course in phlebotomy and was earning $22.00 per hour, an increase in earning capacity. The software used by vocational experts would never have predicted this outcome. I did however; predict it, as it turned out that the worker had 100 undergraduate units, but no degree. I asserted that with that level of aptitude for learning, he would eventually find his highest and best earning capacity. The evaluation which is limited to D.O.T codes will be open to scrutiny and can be overturned. Only by consideration of all rehabilitation factors is it possible to accurately predict earning capacity.

Emily Tincher is a vocational expert, in practice over 25 years throughout California, as a specialist in workers compensation. She has a Masters in Vocational Rehabilitation Counseling from the CRC certified program at University of Southern California, and was admitted to the American Board of Vocational Experts as a Fellow.